In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Friday, 31 August 2012

The Godfather was initially written as a novel by Mario Puzo, before Paramount Pictures produced the film in 1972. Before he died in 1999 ,Mario Puzo wrote the screenplay for The Family Corleone, the prequel The Godfather,
however the screenplay was never produced. Subsequently Ed Falco wrote a novel,
The Family Corleone, based on Mario Puzo's screenplay. His novel was published
by Grand Central Publishing, and was released on 8 May 2012.
﻿

Prior to publication, Paramount Pictures stepped in to try
to prevent the new novel being published. Paramount sued Mario Puzo's estate in
March of this year, seeking a declaration that it owned the publishing rights
to any book that was a prequel or a sequel to The Godfather. Paramount claims that it bought
copyright in The Godfather from Mario Puzo in 1969. Paramount says that this
included all literary rights and the rights to use any characters "created
for the story in other works."

Unsurprisingly, Mario Puzo's estate has now requested
confirmation from the courts that Paramount does not have any rights over
future films in the The Godfather franchise. The estate says that the original
agreement between Paramount and Mario Puzo did not include book publication
rights therefore the estate owns the publishing rights as well as the film rights to
all new books.

The idea/expression dichotomy springs to mind here:
copyright cannot protect an idea and it can sometimes be difficult to protect
characters. In the UK we know from Hodgson v Isaac
that the entire plot of a book cannot be copied, and it is therefore arguable
that if a character is described in a sufficiently detailed and original way
that it too could be protected by copyright. The fact pattern in this case is relatively complicated, and the case may turn on what the contract said rather than on copyright law, but either way this will be an interesting one to watch.

Copyright Law is one of the shortest and neatest titles on copyright law that I've seen in a little while -- and there is an admirable tidiness about this book. The authors, Jane C. Ginsburg and Robert A. Gorman, are not unknown in intellectual property circles and have long passed the point at which they need to prove themselves. In some respects, the mark of a genuine scholar is not the degree of complexity with which a subject can be analysed but the degree of clarity and simplicity with which often complex notions can be conveyed to the intelligent but unfamiliar reader. This phenomenon is well known in other spheres of human endeavour, in tales of how Giotto (some say Michelangelo) was able to draw without assistance a perfect circle, or of the precision required of the cook to execute the perfect soft-boiled egg. Sadly, in intellectual property circles too few people -- professors, judges, legislators and now PhD students -- have appreciated the power of this message. But for anyone wanting an accessible yet thought-provoking introduction to US copyright law, which is literally a law unto itself, this book is is definitely more Giotto than Gormenghast.

The book's web-blurb explains what this book seeks to achieve:

"The text provides a clear and thorough exploration of the doctrinal and policy issues in American copyright law in a style accessible to both new and advanced intellectual property students, as well as to practitioners. The book covers every major topic in basic copyright courses: the history of copyright, ownership and duration, formalities, exclusive rights of the copyright holder, fair use, civil and criminal enforcement of copyright law, and federal preemption of state law. Beyond that, the authors address the major new issues that have emerged over the past two decades, including the rules of the Digital Millennium Copyright Act regarding circumvention of technological protections of copyrighted materials, and the principles of secondary liability, both in their basic form and as developed through application of the DMCA to internet service providers. Moreover, attention is given to the important points at which U.S. copyright law intersects with international intellectual property treaties.

Each chapter includes concise summaries and discussions of significant cases, ideal for gaining a complete overview of the doctrine and of the statutory provisions, those that are written with a broad brush as well as those written with painstaking detail. Finally, the book suffuses this doctrinal and statutory analysis with illuminating discussions of the public-policy issues -– from the earliest and most fundamental to those that are at today’s cutting edge -- that help inform and shape the development of copyright".

This book, which part of the publishers' Concepts and Insights series, certainly lives up to this description.

Thursday, 30 August 2012

The definitive early announcement post on Case C-314 UPC TELEKABEL WEIN has already been hoisted proudly on to the IPKat weblog by Eleonora, here, so what follows is just a sawn-off version, both for the record and so that anyone searching the 1709 Blog's database of 1,140+ items will see that we haven't missed it.

This is a reference to the Court of Justice of the European Union (CJEU) of four questions upon which the Austrian Oberster Gerichtshof would like some answers before it proceeds to deal with the case before it. The questions are as follows:

"1. Is Article 8(3) of the [InfoSoc] Directive [2001/29] to be interpreted as meaning that a person who makes protected subject matter available on the internet without the right holder’s consent is using the services of the access providers of persons seeking access to that protected subject matter?

2. If the answer to the first question is in the negative, are reproduction for private use and transient and incident reproduction permissible only if the original reproduction was lawfully reproduced, distributed or made available to the public?

3. If the answer to the first and second question is in the affirmative, and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Directive, is this compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights?

4. If the answer to the third question is in the negative, is it compatible with Union law to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material made available unlawfully if those measures require not considerable costs and can easily be circumvented without any special technical knowledge?".

Eleonora has called on Austrian readers of the IPKat to post some background information relating to the underlying litigation; at the time of posting of this blog, however, it appears that no public-spirited Austrian has responded to her call. Meanwhile, this post reminds readers that the UK's Intellectual Property Office invites comments that will determine whether any British lawyers have the joy of being commissioned to present the UK government's position -- should it have one -- to the CJEU. If you'd like to submit your thoughts or observations to the UK government, you should email Policy here by not later than 7 September of this year.

The latest issue of the UK's Authors' Licensing and Copyright Society's ALCS News carries a lively pulls-no-punches piece, "The Big Online Rip-Off", by writer and publishing analyst Danuta Kean. In this article Danuta examines the current state of play in the currently one-sided battle between authors and online pirates, offering some practical tips as to how authors can "stage the fight back". Explaining the nature and scale of the adversary, she writes:

"Contrary to popular belief, illegal filesharing sites are not shoestring operations run by penniless kids. They require vast servers to host stolen content. They also require huge bandwidth to handle the illegal downloads. Even start-ups – let’s call them small town dealers – need computer equipment, software and broadband services that cost considerable amounts of money. To pay for their operations, traffickers use two revenue models: paid-for premium subscriptions that enable faster downloading; and display advertising – often supplied through Google Ads – which appears as content downloads.

The revenue raised is eye-watering. When the executives behind file-sharing site Megaupload were indicted for copyright violations, racketeering and money-laundering, the indictment left many authors (average income £7,000 and falling) slack-jawed at the money involved. The FBI accused the seven executives, including CEO Kim Dotcom (yes, seriously, that is his name) of amassing $175m since the site launched in 2005. In 2010 Dotcom took home $42m; another executive earned $9m. Among seized assets were a Lamborghini, a Maserati and 15 Mercedes cars with personalised number plates including the legends "STONED", "GOOD", "BAD", "EVIL" and "GUILTY". Oh, and a Rolls-Royce Phantom (list price £250,000 to £300,000) bearing the number plate "GOD"".

On the assumption that this isn't a sufficiently mouth-watering proposition to encourage authors to say, "if you can't beat'em, join'em", she then lists her suggestions for tackling the phenomenon:

Contact: Companies whose advertising or services benefit trafficking sites. When you find ads for companies on filesharing sites contact those companies through the "investor relations" pages on their website and point to the specific places in which their advertising revenue is being used to support illegal sites. Ads are usually supplied by services such as Google; again use the investor relations page to contact the provider and point out that its service is helping fund a trafficker [it would be good to hear of any empirical evidence that this has any effect. Where advertisers are not public companies with a corporate conscience -- for example small retailers and etailers who are selling big brand products that may be grey goods or infringements in any event -- this may either be impossible or unlikely to bear any fruit].

Note: Every time you search for a piece of music, book or film and the first result page that appears is illegal downloads, inform the copyright holder and the search engine. One of the issues faced by copyright holders is the ease with which illegal sites get their content to the top of search results, making it easier to entice punters into stealing [Again, it would be good to know how effective this is. Other than depressing copyright owners, who are generally aware when this is the case if they're commercial enterprises or unable to do much about it if they're not, it's not clear what effect this has].

Lobby: The Open Rights Movement has massive lobbying power. They put their case to MPs and MEPs through lobbyists based in London and Brussels. Counter their arguments and contact your MP, MEP and relevant ministers to show how copyright infringement is undermining creativity, not feeding it [the Open Rights Group does call for an evidence-based overhaul of copyright law, as its website indicates, which rather leaves open the question as to what its final policy might be on the subject. Given that MPs and MEPs generally know little and care less about IP, which is never a vote-winner, it might be more effective for authors and copyright owners to join the Open Rights Movement and debate the issues with it from the inside].

Join: Organisations like ALCS, the Publishers Association and the Society of Authors can keep you updated on what is needed, such as changes to search engine protocols to stop traffickers ranking top in searches [this isn't going to change the world, not at least initially, but a better-informed author or copyright owner can be expected to make better decisions].

Publicise: No company wants bad publicity. Use shareholders' meetings, blogs and articles to point out how specific businesses are profiting from the Big Rip Off of Writers [blogs, tweets, Facebook and the social media in general have had some notable successes in influencing corporate behaviour, and sometimes even policy. The big problem here is the risk of an action for defamation if authors and copyright owners get the facts wrong].

Argue: A recent study of BitTorrent traffic showed that 35.8% was pornographic. Ask these businesses if they know they are making money from sites that include the exchange of child pornography. Ask filesharing friends about the company they keep" [Again, brand owners who are sensitive about their image may not be able to influence the marketing and sale of products once they have been placed on the open market -- but it can do no harm to draw this to their attention].

Danuta closes with the following sentiment:

"This is not an easy fight, but writers and other artists should not assume they cannot fight back. We can. We know we can, because we have been in a world where ripping off writers was endemic before. It was the active and vocal campaigns of writers in the 19th Century that established copyright in the first place. It’s time we brought our fighting skills up to date".

This is true, but back in the 19th century authors like Charles Dickens and Victor Hugo had an easier time of it than did the authors of today. It was a time when much if not most of the debate over the existence and extent of copyright focused on moral issues, not purely economic ones -- and the public sense of what was right and wrong, fair and unfair, was probably a good deal more pronounced in those days than it is now.

The US based television streaming service ivi suffered a major setback this week after the federal appeals court upheld a lower court’s temporary injunction against the controversial company. The case was brought against Seattle based ivi by ABC, NBC, Universal, Univision, Fox Television, CBS and several other broadcasters, networks and rights owners, asserting that the startup was infringing their copyrights by live-streaming their programming without permission. Initially, ivi began retransmitting signals
from about 30 New York and Seattle stations in 2010, but it quickly expanded,
retransmitting signals from Los Angeles and Chicago and offering several
thousand copyrighted programs to its subscribers. For about $5 per month,
subscribers could access content owned by and distributed through major
networks. In its ruling, the U.S. Court of Appeals for the Second Circuit said that allowing
ivi to resume service could “threaten to destabilize the entire industry” and
inflict irreparable damage on the networks. It also determined that ivi was not legally the same as a cable network, noting in particular that it “retransmits
broadcast signals nationwide, rather than to specific local areas". Ivi’s
position is that as it was an "Online Video Distributor" that could
be considered a cable system, it only required the same compulsory licenses the
U.S. Copyright Office grants to cable providers under §111 of the Copyright
Act, and that it didn’t need consent to retransmit signals because as an online
service it is outside the Federal Communications Commission’s remit. The company argued that like other cable systems, it merely had to pay a statutory rate of about $100 a year to have access to the content. Giving the unanimous judgment of the Court, Judge Denny Chin reviewed ivi's system of capturing and retransmitting programming, with the ability to record, pause, fast-forward, and rewind streams, and its legal arguments. The judge says that based on the
statutory text of the copyright provision, it was "not clear" whether
a service that retransmits live television programming over the Internet constitutes
a cable system and said the growth of "cloud-based systems...highlights
the uncertainty". But Judge Chin then noted that "Congress has not
codified a statutory provision for Internet retransmissions, nor has it
included the 'Internet' as an acceptable communication channel under §
111.7." and that the statutory licensing system was put in place to allow
remote rural communities to obtain a stronger TV signal – and that Congress was not “opening
the door to digital streamers”. Put simply, the Second Circuit said that
streaming services are not cable systems. Upholding the
February 2011 decision of Judge Naomi
Reice Buchwald in the U.S.
District Court for the Southern District of New York, granting a preliminary
injunction barring ivi from transmitting copyrighted material belonging to such
as ABC, CBS, NBC, Fox Television and Major League Baseball, Judges Chin, Ralph
Winter and Christopher Droney said “The
absence of a preliminary injunction would encourage current and prospective
retransmission rights holders, as well as other Internet services, to follow
ivi’s lead in retransmitting plaintiffs’ copyrighted programming without their
consent” and noted that if ivi’s service were to continue “The strength of
plaintiffs' negotiating platform and business model would decline. The quantity
and quality of efforts put into creating television programming, retransmission
and advertising revenues, distribution models and schedules –- all would be
adversely affected. These harms would extend to other copyright holders of
television programming. Continued live retransmissions of copyrighted
television programming over the Internet without consent would thus threaten to
destabilize the entire industry." "We
are very pleased the Court recognized that ivi's unauthorized streaming of our
copyrighted content would substantially diminish the value of television
programming," said ABC, NBC, CBS and Fox in a statement.
"1709 Readers will remember that Judge Chin was also the judge in the 'Google Books' settlement - where he rejected in Google's first offering as it gave Google a significant advantage over competitors, and would have rewarded the web giant for wholesale copying of copyrighted works without permissions.More at the Hollywood Reporter and The New York Law Journal

Wednesday, 29 August 2012

The Copyright Administration of Chongqing
and the Chongqing University of Posts and Telecommunication have announced their
new online copyright registration system which has been developed for use in
China. Although a copyright registrations system already exists in China this
new system, which is called DCAS, will enable authors to register copyright
applications from home, and will enable the registration of incomplete works.

"In the past, an author couldn't
apply for a copyright until the entire work was completed," said
Xiong Zhihai, dean of the School of Law at the university and leading
researcher of the system. "But it might leak out beforehand and be
pirated, and the author may not be able to prove that he is the actual
creator," he said.

The DCAS system allows authors to
register incomplete works by creating a record and uploading however much of the
work as has been completed. The author is then provided with a reservation
certificate, detailing the time of registration.

The Future
of Copyright has said that implementing a registration system in Europe
could simplify the burden of proof in future copyright disputes and would
therefore be beneficial to European countries. Generally however, European
copyright disputes do not tend to turn on whether the claimant owns copyright
in his work, or when the work was created, but on whether the defendant's
behaviour is infringing.

Xiong Zhihai explained that "Even if
the author writes only one paragraph, or just a title, he can upload it to the
DCAS for the system to generate a record. If disputes happen in the future,
that record can be used as evidence to claim the copyright."

In the UK the question would be whether "one
paragraph, or just a title" is sufficiently original as to qualify as a work
in its own right, or as the substantial part of a larger work. If so, the work
would be protected irrespective of the fact that it forms part of a larger as
yet incomplete work.

On that basis the DCAS system doesn't sound
particularly exciting from a UK point of view, however it is interesting to see
how different countries are trying to tackle copyright issues, and will be more
interesting yet to see whether the DCAS system is widely used in practice.

David O. Carson, the General Counsel of the US Copyright Office, is joining international recorded music industry association IFPI as head of global legal policy. He will report to chief executive Frances Moore and help "coordinate the organisation’s outreach to policymakers worldwide". Mr Carson will join IFPI on the 24thSeptember.

Tuesday, 28 August 2012

The latest stage in the Joel Tenenbaum saga has resulted in another court loss for the self confessed file sharer after a federal appeals court upheld the award of damages of $675,000 previously made by a jury.
Tenenbaum was accused of illegally downloading 31 songs from a file-sharing Web site and distributing them, and was sued by the Recording Industry Association of america (RIAA) on behalf of the major record labels in the USA. US District Court Judge Rya W. Zobel rejected Tenenbaum's request for a new jury trial, saying jurors had appropriately considered the evidence of Tenenbaum's actions -- downloading and distributing files for two years despite warnings -- and the harm to the plaintiffs and noted that the penalty is at the low end of the range for wilful infringement and below the limit for even non wilful infringement, and thus was not excessive. Although having been previously refused a Supreme Court hearing, Tenenbaum's attorney Charles Nesson said that he plans a further appeal. More at CNet and E-Commerce and background on the 1709 here and hereImage: freefoto.com (Ian Britton)

Monday, 27 August 2012

TV catch-up service UKNova has just announced
that further to receiving a cease and desist letter from the Federation Against
Copyright Theft (FACT), it will be taking down all links or access to
television content.

UKNova is being forced to change. We have been
issued with a "cease and desist" order by FACT (The Federation
Against Copyright Theft).

Despite
our efforts to cooperate with the UK media companies, FACT have stated:
"ALL links or access to content provided by UKNova are infringing, unless
it can be proven that explicit permission from the copyright holder for that
content has been obtained".

Whilst
we believe that they are wrong both legally and morally on account of the
strong 'no commercial content' stance that we have always taken, we are not in
a position to be able to risk lengthy and costly court battles to prove this.
Therefore we have no other option but to close down the trackers. It has not
been an easy decision to take, but it is apparently our only option.

The
forums will remain open for business as usual. Torrents and their associated
pages will disappear over the next few hours.

Our
heartfelt thanks go to all, past and present, who have worked tirelessly, often
thanklessly, for the good of our community."

UKNova's site sets out some
background to the principles on which the site, which was originally created in
2003 to enable people to share British television programmes, operates. UKNova says
that its main aim is to "enable people to see programmes they would not
otherwise be able to watch, perhaps because they live abroad or have missed
something they wanted to watch when it was broadcast live."

UKNova does not store copies of any
television shows on its servers and it does not "itself 'share' any
copyrighted material with anyone else". The site allows people who wish to
share programming to link up with one another, using the BitTorrent protocol.

The concept seems at a first glance to
closely resemble the ill-fated SurfTheChannel
(STC) and TVShack
websites. Each of these sites links to content owned by third parties, allowing
users to find content that they want to watch more easily. Given the 4-year
jail sentence imposed on Anton Vickerman for running STC (for conspiracy to
defraud, rather than for copyright infringement) and the possible extradition
faced by Richard O'Dwyer, owner of TVShack, it is clear why UKNova have opted
to remove the allegedly infringing links rather than face court proceedings.

However a crucial difference between
UKNova on the one , and STC and TVShack on the other, is the commercial focus
of the sites. When suing Vickerman, FACT explicitly made a statement
saying that "The site [STC] was not a passive linking or search site. Vickerman
targeted pirated films including those not yet released at the cinema which he
and his staff secretly and anonymously uploaded to third party sites before
linking to them via STC. Members of the surfthechannel community were also
encouraged to find, check and add links, ensuring that surfthechannel was always
one of the most up to date databases of illegally copied material anywhere on
the internet."

Both Vickerman and O'Dwyer made hundreds
of thousands of pounds from their sites, however UKNova clearly states on its
website that:

"It is one of the fundamental
principles of UKNova that we do not wish to cause any harm to potential revenue
streams for broadcasters and programme makers. For this reason, no television
or radio programme that is available for purchase worldwide from retailers, on
CD, DVD or video, is allowed to be shared on this website. Please do not ask
for material to be uploaded here that is available to buy. Such material is not
allowed.

UKNova is free to use. It is not possible
to buy ratio bonuses or special privileges, or anything else like that. The
site survives purely from voluntary donations and all donations go towards the
costs of running the server. If you use the site and the service it provides,
please try to contribute to the running costs by donating."

In support of this, you can see the
extensive list of content that UKNova did not permit to be uploaded to its site
here. Irrespective of this
blacklist, UKNova linked to content owned by third parties without the right to
do so. It enabled users to view that content without paying making rightsholders
less likely to be able to monetise that content themselves.

According to TorrentFreak,
in this case despite UKNova's ethical approach, a small percentage of a big UK
satellite provider's content and the content of a football production company
(apparently BSkyB and the Premier League) was available on UKNova. It was this
that persuaded FACT to send the cease and desist letter.

The application of copyright law to the Internet
is far from clear in respect of many issues, however the main source of misunderstanding
from the public's point of view seems to be: if I'm not making money from
sharing content I'm not doing anything wrong. The US case of Flava
Works Inc. v Marques Rondale Runtrecently
held that it is not an infringement to embed a copyright-infringing video on
another website. The correct approach is probably to make licensing of content
easier so that people can pay for what they want to see. Generally people are
willing to pay for shows they like but when it is so easy to view them for free
they see no need to.

In this, the sixth and final article in her series of guest pieces on copyright and moral rights for the 1709 Blog, Mira T. Sundara Rajan looks at two very public instances of plagiarism by high-profile "brand" authors -- and at the attitudes and responses generated by their plagiarism:

A Rose by Any Other Name? Moral Rights, Plagiarism, Lehrer and Zakaria

What do Jonah Lehrer and Fareed Zakaria have in common? Apparently, bad judgement. Both have been involved in matters of plagiarism. In Zakaria’s case, plagiarism led to suspension from his duties at CNN and Time, followed by swift reinstatement. In Lehrer’s case, an episode of so-called “self-plagiarism” was followed by the discovery that he had fabricated facts, and led to his resignation from his position as a staff writer at the New Yorker.

From a moral rights standpoint, both cases are worth a closer look.

The cases involved plagiarism, and the plagiarism has been described in terms of mis-attribution, or failure to attribute material. In a culture where moral rights seem to provoke a good deal of controversy, the concept of attribution still meets with universal acceptance.

And, indeed, extraordinarily high standards are applied to condemn any possible crossing of the line between original and “copied,” or unattributed, material – even if, as in Lehrer’s case, it was copied from himself. Lehrer’s articles for the New Yorker included extensive “unattributed” passages from his blogs and other writings. His offense amounted to passing off old material as fresh thinking (Or fresh “ideas”: see Kelly McBride’s fascinating discussion, entitled “What’s wrong with Jonah Lehrer plagiarizing himself (at least 13 times)” Poynter, 20 June 2012, available here). He did not lose his job at the New Yorker over “self-plagiarism.” He was reprimanded, and apologized. In a sense, it is remarkable that the incident generated as strong a response as it did. Once again, Lehrer was held to a very high standard of originality with respect to his New Yorker publications. Attribution was required, even if it was attribution of his own, earlier work. He should not have used his earlier work and claimed, by implication – through its publication in the New Yorker – that it was new, original work.

Zakaria’s situation was different. He, too, had copied, but what he copied was an excerpt from a New Yorker article by another author, Jill Lepore, which then appeared in his column in Time magazine. Once again, the problem was failure to attribute. But, in contrast to Lehrer’s case, the problem here is painfully obvious – trying to pass off the words of another as one’s own, “free-riding” on another’s work to maintain one’s own productivity or reputation. Zakaria apologized “unreservedly” to the author of the original article, saying that he had “made a terrible mistake.” The paragraphs from Zakaria’s work and Lepore’s article are virtually identical, but Time and CNN have both taken Zakaria at his word, and reinstated him. The message seems to be that Zakaria blundered, but that he did not have the nefarious intention of stealing another writer’s work and passing it off as his own. He is human, and should be forgiven for his mistakes.

The issues involving these two cases of “plagiarism” bring out some interesting conflicts in our culture. As much as they are writers, Zakaria and Lehrer are both media “brands.” It is understandable that media companies would reinstate people like them – they are hard to replace, and anyone who is expected to produce such a volume of “content” for the various media outlets that now demand it, is at risk of becoming involved in recycling material and making errors. By failing to attribute the work of another – or, in other words, violating Jill Lepore’s moral right of attribution – Zakaria crossed a line that Lehrer did not. However, beyond the scandal of a few days, Zakaria has paid little price for his error.

In today’s media climate, what makes the public, including the employers of these two men, cling so desperately to the ideal of “originality,” and to embrace the concept in such a strict form? The “remix” culture is widely championed, and those who argue in favour of the “freedom” to use and re-use the work of others often enjoy the status of folk heroes. It is not just in music that remixing has become popular. Helene Hegemann, a teenage writer who published a novel that was built out of unattributed passages from other works, affirms that “there is no such thing as originality – only authenticity” (See Kate Konolly, “Helene Hegemann: ‘There’s no such thing as originality, just authenticity,’” Guardian Observer, 24 June 2012, available here. In the current English version of the book, Konnolly notes, “All quotations are now sourced”). Yet the standards applied to Lehrer and Zakaria suggest just the opposite. Not only does originality continue to be recognized, but we are entering the era of a new neurosis of originality. An author should not copy even from himself or herself. But there are probably numerous cases of writers re-working their own material. For example, F. Scott Fitzgerald was apparently known to “use” material from his commercial short stories in his literary novels. In Lehrer’s case, if he had cited his earlier work (and if it continued to be valuable to the New Yorker on that basis), much of the controversy could have been avoided.

Lehrer, though rebuked, was in no danger of losing his position on account of self-plagiarism. But he went on to something much more interesting. Writing about Bob Dylan in a recent book, he invented a quotation and attributed it to Dylan. When those knowledgeable about Dylan came calling, Lehrer tried to maintain the quote’s authenticity, but finally admitted to fabrication. This incident, in contrast to the earlier one, cost him his job.

The right and wrong of this second transgression stood out starkly in black and white. Facts had been falsified – the incident violated the integrity of Lehrer’s subject, and of his book. But there was a subtle irony in Lehrer’s misconduct. David Kinney, writing for the New York Times, notes that Bob Dylan himself was a a great teller of tales about his own life. Of Dylan’s autobiography, Kinney notes, “Mr. Dylan got a longer leash with “Chronicles.” He filled it with knowing winks and nods to its unreliability, and anyone who didn’t know that he’d play around with his story hadn’t been paying attention.” Was it Dylan’s stature in pop culture that spared him the awkward judgement meted out to Lehrer? Was it the fact that he toyed with his own life and not the life of someone else? Whatever the reason, Lehrer’s offense struck a chord for its impropriety, while Dylan’s history, entwined with self-made myths, is known and accepted.

For the time being, these questions have no easy answers. But two interesting conclusions can be drawn. First, from a moral rights point of view, and despite appearances, the concepts of attribution and integrity are actually quite well-recognized in the culture. But they are recognized under different names: plagiarism, on the one hand, and ethics, journalistic integrity, or just plain truth, on the other. As a result, lawyers who want to encourage the recognition of moral rights may have to work with a wider vocabulary, and within a wider discourse. This is no bad thing: the term “moral rights” is nothing but a poor translation from the French, and finding new ways to describe what moral rights really stand for would probably be helpful in many respects.

Secondly, originality is not dead. It lives – and indeed it has become something of a Frankenstein in the context of new media. Originality and attribution are inextricably intertwined. The right of integrity, too, makes sense here – whether it is integrity of authorship, or integrity of information. But, either way, it is good to remember that the author, himself or herself, is a mere human being. Mistakes happen – temptations arise – and the inhuman demands of technology can have a corrupting influence on the integrity of authorship. Good writing is still something more than “content.” With time and freedom more scarce than ever before, it is harder than ever to produce it.

The 1709 Blog is pleased to announce that Mira is joining the blog team as a regular member.

Friday, 24 August 2012

US musician/film
director/fashion designer Kanye West is well-known not just to
gossip lovers (recently because of his relationship with socialite/reality
TV star/model/actress Kim Kardashian), but also to copyright
aficionados.

A few months ago this Blog
reported news of a copyright infringement claim brought against Kanye and Jay-Z by soul veteran Syl Johnson over 1967 song Different
Strokes, which ended up with a settlement between the parties (seehere and here).

Now Kanye is back on the
copyright scene, with a fresh judgment of the US Court of
Appeals for the 7th Circuit (a summary is also available here), which ruled in his favour
in an action for copyright infringement brought by music producer Vincent
Peters (professionally known as Vince P).

Background

In 2006, Vince P wrote, recorded, and
distributed a song entitledStronger. The song’s title comes from a key line in its hook (refrain or
chorus).

As recalled byJustice Wood, who delivered the Opinion of the Court, the line draws from Friedrich
Nietzsche’s quote from his 1889Twilightof the Idols: “What does not kill me, makes me stronger.”

German philosopher Nietzsche

After writing this song (which describes the competitive nature of the hip-hop and rap
world), Vince P sent it to producer John Monopoly, a close friend
and producer to Kanye West. Monopoly was apparently impressed with Vince P's
work and agreed to be his producer. Eventually, however, the proposed
collaboration foundered.

As
it often happens in these cases, shortly thereafter (in 2007), Kanye West
released a song entitled ... Stronger. This, besides sampling from electronic duo Daft
Punk'sHarder Better Faster, features a hook that repeats Nietzsche's quote and,
according to Vince P, other suspicious similarities. West's song was very
successful: it earned the No 1 spot in several Billboard charts, the single
sold over three million copies, and it eventually earned West a Grammy for Best
Rap Solo Performance.

Following
unsuccessful attempts to contact West, Vince P thought of first registering his
own version of Stronger with the US
Copyright Office [as recalled by the Court, copyright registration, while not
jurisdictional, is a substantive requirement of infringement litigation] and
then filed a lawsuit against West.

Both
the District Court and the Court of Appeal dismissed Vince P's claim, holding
that the two songs were not similar enough to support a valid claim of
copyright infringement.

Vince
P succeeded in providing prima facie evidence of his ownership in the
whole of the lyrics to his song. Thus, the Court turned its attention to the
question of copying.

"The standard for copying is surprisingly
muddled", pointed out the Court. Where direct
evidence - such as an admission of copying - is not available, a plaintiff may
prove copying by showing that:

(a)
the defendant had the opportunity to copy the original (often called “access”)
and

(b)
the two works are “substantially similar” [and similarities concern protectable elements].

Because of Monopoly, West had
an opportunity to copy Vince P's song. Therefore, the question was whether he
actually did that and, if so, to what extent.

Substantial similarity

What "substantial similarity" is about?(photo by Diane Arbus)

To address this issue, the
Court first reviewed the differences among the Circuits about therelation
between proof of access and evidence of similarity, and then considered whether
the similarities alleged by Vince P sustained a valid claim of infringement.

Three features of Kanye West's Stronger formed the
basis of Vince P’s argument that West’s song infringed his:

(i) First, he noted that the hooks of both songs
derive from the same common maxim and that they implement similar rhyme schemes
(stronger, wronger, etc).

(ii) Second, he pointed to the songs’ shared title,
which again derives from Nietzsche.

(iii) Finally, he noted that both songs contain
“incongruous” references to the UK model Kate Moss, who is not usually featured
in rap or hip-hop lyrics.

(i) and (ii): Nietzsche’s quote,
rhyme schemes and title

Despite the fact that both
songs quote from a 19th century German philosopher might, at first blush,
seem to be an unusual coincidence, West correctly noted that the
aphorism has been repeatedly invoked in song lyrics over the past century
(if you don't believe it, watch this YouTube video here). Therefore, neither the
Nietzsche's quote nor the title (which was also used by Britney Spears) led to a finding of infringement.

As to Vince P's claim
that West’s song infringes on the rhyme pattern he used in the hook, the
Court recalled that copyright protects actual expression, not methods
of expression. Therefore Vince P could not claim copyright over a
tercet.

Reference to Kate Moss as paragon of female beauty is a trite one, held the Court

(iii): Kate Moss

Coming
to the songs’ references to Kate Moss, in Vince P’s song, the line is “Trying
to get a model chick like Kate Moss”; in West’s it is “You could be my
black Kate Moss tonight.”

Vince
P argued that his lyrical reference to Kate Moss “as a paragon of female beauty” is so unique as to “undermine the possibility of coincidental
similarity.”

The
Court rejected this view and held that, in the first place, the lines are
entirely different. In the second, analogising to models as a shorthand for
beauty is commonplace in our society. The particular selection of Kate Moss,
who is very famous in her own right, added little to the creative choice.

Conclusion

Having
examined all these issues, the Court dismissed Vince P’s claim as unfounded.
This blogger thinks that the judgment sounds about right. It can be said that
Vince P's claim failed over lack of originality of the parts of the song
Kanye West allegedly copied from his version of Stronger. As
commented in theFindLaw Blog, "You don't hear Nietzsche's ghost whining about everyone ripping him off.
That's because - as the lyrics of the song you copyrighted would suggest - what
doesn't kill you makes you stronger."

Thursday, 23 August 2012

In the USA, Federal authorities have seized three domains which they believe are
involved in the illegal distribution of pirated Android apps. The three domains are applanet.net, appbucket.net and snappzmarket.com. Anyone visiting those sites will now see this alert:

US Attorney Sally Quillian Yates said “Criminal copyright laws apply to apps for cell phones and tablets, just as they do to other software,music and writings. These laws protect and encourage the hard work and ingenuity of software developers entering this growing and important part of our economy. We will continue to seize and shut down websites that market pirated apps, and to pursue those responsible for criminal charges if
appropriate". The
Department of Justice said this was the first time it had seized websites to
prevent the infringement of copyrighted mobile device apps. During the operation, FBI agents downloaded thousands of copies of popular copyrighted mobile device apps from the alternative online markets suspected of distributing copies of apps without permission from the software developers who would otherwise sell copies of the apps on legitimate online markets for a fee. In most cases, the servers storing the apps
sold by these alternative online markets were being hosted in other countries, and so international law enforcement partners assisted in obtaining or seizing evidence stored on these servers in countries including the Netherlands and France. The DOJ said nine search warrants were also executed in six different districts across the US as part of the operation. http://www.justice.gov/opa/pr/2012/August/12-crm-1033.html

Deloitte's Technology, Media and Telecommunications (TMT) predictions here and more on apps here by clicking on 'telecommunications' and find "So many apps, so little to download"

Wednesday, 22 August 2012

News aggregation sites: newspapers can't
live with them and can't live without them.

Is the newspaper a dying breed?

In June, the German government published
draft legislation which would require news aggregation sites to pay royalties
on the snippets and headlines that they publish. These royalties would be paid
to a new collecting society which would distribute them to the publishers.

According to Information
Week, a recent revision to the draft legislation has limited the scope of
the copyright proposal. The first draft included a new "ancillary
copyright" that would have required companies to pay licensing fees for
any published work used in a commercial setting. This would have meant companies
payinig a licensing fee for any published works (including online news)
consumed in the work place. The most recent draft, which remains under
discussion, seems to relate only to snippets and headlines on news aggregation
websites. This blogger cannot however find a copy of the draft legislation so
is unable to provide further details.

Unsurprisingly, Google is fighting back. Yesterday
Kay Oberbeck, Google's Director of Communications and Public Affairs for Germany,
commented on the proposed amendments on his blog.
His post is in German, however according to Google Translate he is of the view
that the bill is "A law to the
detriment of all".

"Nobody
sees a real reason why this should be implemented. It's really harmful, not
just for users who wouldn't find as much information as they find now, but such
a law is also not justified for economic reasons or judicial reasons."

Further, Oberbeck points out that Google
send readers to the publishers' site and that anyone who doesn’t want their content
to be indexed by Google use a robots.txt file.

This may sound very familiar: English
readers will know that a similar battle is currently being fought in the UK.
The Newspaper Licensing Agency took Meltwater, a paid-for news aggregation
site, to the High
Court and the Court
of Appeal to confirm that both paid-for news aggregation sites and their
commercial users need to pay royalties for the headlines and snippets of
articles consumed. The case proceeds to the Supreme
Court on the very narrow issue of whether the copies of the articles viewed
by users are temporary copies under s.28A CDPA 1988, however for the time being
both news aggregators and users are required to pay licensing fees.

This has proved to be an unsurprisingly
unpopular decision for news aggregators, however interestingly the Newspaper
Licensing Agency is not charging free news aggregation sites, so Google remains
unaffected in the UK.

Will the bill be passed in Germany? The
German federal elections are just over a year away and opponents of the neighbouring
right are expected to challenge successive sets of proposals. The fact that the
two sides appear to take conflicting views on the bill means that anything
could happen.

According to Kay Oberbeck "It is absurd that, of all people search
engines should be addressees of the law. Such a law protects no one and hurts
everyone - users, publishers, search engines, and the German economy."

Monday, 20 August 2012

Just a very short post to update you
that, further to my post
in July about CBS's claim that ABC's The Glass House television series format
copied its Big Brother series, CBS has now dropped its claim.

According to Reuters,
last week The Glass House ranked 87th most viewed television show (one assumes,
in the US) with an audience of 1.59 million, whereas Big Brother had three
episodes ranking in the top 15, each with more than 5 million viewers.

CBS used the ratings as a basis for withdrawing its claim, saying that "The viewers have spoken and delivered
the ultimate form of justice against The Glass House" and that "As a
result, we filed in federal court this morning a voluntary dismissal without
prejudice of our claims against ABC. The contract and trade secrets claims
against former Big Brother producers for violating their confidentiality
agreements will continue separately in arbitration."

Of course CBS reserves the right to re-file the claim against ABC, however for now the law on copying television
formats is no clearer.

It is interesting that the IPKat
has just reported on a German decision which addresses whether a European Patent for a telephone voting technique used on a television show was valid. The court held that it was not. The reasons given for the judgment have still not been handed down, however the IPKat has suggested that perhaps the attempt to seek protection of a television show format using patent law was deployed because the German courts had already denied protection using copyright.

This blogger can't think what patent CBS could
try to file to protect Big Brother, and perhaps it doesn't need intellectual
property protection if ratings continue the way that they have been going,
however if any readers have other ideas on how television formats could be
protected, or indeed whether they should be protected, this blogger would be
interested to hear your thoughts.

Thursday, 16 August 2012

Germany's Federal Court of Justice, the Bundesgerichtshof,
has recently held that internet service providers (ISPs) must disclose the name
and address of illegal file sharers when requested by copyright owners.

Tonpool, a German independent music
distributor sued in respect of a song entitled "Bitte hör nicht auf zu
träumen" by Xavier Naidoo, which was downloaded from a file sharing site
in 2011. The copyright owner asked ISP Deutsche Telekom for the name and
address of the file sharer however Deutsche Telecom failed to provide the
information, causing Tonpool to take the issue to court.

Until now ISPs in Germany had only been
required to share contact details of users who share files commercially or for
profit, however now ISPs can be required to disclose details of ordinary users
who distribute copyright protected content.

Further to my post
earlier this week reporting Donald P Harris' pod cast on file sharing, here
are some statistics on the German music industry (according to Billboard)
which show that, as many of the comments on my last blog post said, people are
still willing to pay for music.

The German Music Industry Association
(BVMI) has reported a 0.2% increase in overall revenue for the half of 2012. The
strongest growth was in album downloads, which jumped nearly 35 % year-on-year so that online music sales now account for
just under 20 % of total revenue in the German market, up from 14.4 % over the
same period last year.

The BVMI figures do not include revenue
from online streaming services - apparently streaming revenue accounted for
about 2% of the German music market last year. Unsurprisingly, physical CD
sales continue to fall (by 5.4 % in the first half of 2012), however CDs still
account for 72 % of overall revenue.

To this blogger the small revenue attributed to
downloads compared to CDs is indicative of illegal file sharing, but perhaps the
Germans are just a CD loving nation?

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